STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

R AND J ENTERPRISES OF BREVARD, LLP,

Petitioner,

vs.

DEPARTMENT OF TRANSPORTATION,

Respondent.

/

Case No. 13-1659

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case by video teleconference with Petitioner appearing from Sebastian, Florida, before J. D. Parrish, an Administrative Law Judge of the Division of Administrative Hearings (DOAH), on July 18, 2013.

APPEARANCES

For Petitioner: Gary B. Frese, Esquire

Frese Hansen Anderson Anderson Heuston & Whitehead, P. A.

2200 Front Street, Suite 301

Melbourne, Florida 32901

For Respondent: Kimberly Clark Menchion, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUES

The central issues in this case are whether Petitioner knowingly submitted an application with false or misleading

information for the purpose of securing sign permits and, if so, whether the sign permits should be revoked.

PRELIMINARY STATEMENT

On March 4, 2013, Respondent, Department of Transportation (Respondent or FDOT), issued a Notice of Intent to Revoke Sign Permit for Violation (the notice). The notice identified Outdoor Advertising Permit numbers 56240 and 56241 located in Brevard County, Florida. The owner of the permits, R and J Enterprises of Brevard, LLP, received the notice on March 11, 2013. The notice followed an Order to Cease Work that also identified the subject sign(s) that had been posted on the same date.

Petitioner was thereby given notice to cease construction of the sign.

In issuing the notice and cease work order, Respondent cited section 479.07(3), Florida Statutes, as the authority for its decision. More specifically, FDOT claimed Petitioner had provided a false parcel identification number on its application forms for both sign facings such that the zoning authorities had designated an erroneous zoning. The parcel identified by Petitioner is zoned commercial. The parcel owned by Petitioner on which the sign is to be constructed is zoned residential.

Upon receipt of the notice, Petitioner timely filed a Petition for Formal Evidentiary Hearing. Essentially, Petitioner maintains there was no intentional misrepresentation of the

parcel upon which the sign was to be constructed. Petitioner asserts that the sign was always identified by the correct street address, that submitting an erroneous parcel identifying number was a simple mistake, and that revoking the permits applicable to the signs would be improper under the circumstances of this case.

On May 7, 2013, Respondent forwarded the case to DOAH for formal proceedings. The case was scheduled in accordance with the parties’ Joint Response to Initial Order filed on May 15,

2013.

At the hearing, Kenneth Pye, Christy Fischer, Michael Vaeth,

Don Facciobene, and Donna Lindsay testified on behalf of Petitioner. Mr. Pye also testified on behalf of FDOT. Petitioner’s Exhibits 1 through 16 were admitted into evidence. Respondent’s Exhibits 1 through 19 were also admitted into evidence.

The Transcript of the hearing was filed with DOAH on

August 2, 2013. The parties were granted 20 days within which to file their proposed recommended orders. Both parties timely filed Proposed Recommended Orders on August 22, 2013, that have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner owns a parcel located in Brevard County, Florida, upon which it desires to construct a sign with two sides (one facing north, one facing south). The parcel is located at

   
   

   4121 Norfolk Parkway, West Melbourne, Florida, and is adjacent to Interstate 95 (I-95).

2. Respondent is the state agency charged with the responsibility of regulating outdoor advertising located within 660 feet of the state highway system, interstate, or federal-aid primary highway system. It is undisputed the parcel owned by Petitioner together with the proposed two-sided sign falls within Respondent’s jurisdiction and is adjacent to I-95.

3. The application process for sign permits follows a specified course to assure the applicant submits all requisite information and the parcel meets the statutory guidelines. In this case, Petitioner submitted not fewer than three applications for the desired permits. Each side of the proposed sign required a permit and each permit required an application. Each of the first applications was rejected and returned to Petitioner for reasons specified by FDOT.

4. Among the reasons Petitioner’s applications were rejected were: the applicant did not answer all questions on the applications completely; the forms were not notarized; the applications did not have a signed statement from the local government official indicating the land use designation of the parcel; and the parcel identification numbers did not match on all documents.

   
   

5. On December 17, 2012, Petitioner completed and had notarized one or two applications for the sign permits. Only one application for each side (dated December 17, 2012) was received by Respondent. Those applications indicated the zoning for Petitioner’s parcel as commercial parkway district, an acceptable zoning for the approval of a sign permit. In truth, however, Petitioner’s parcel is zoned residential.

6. Respondent considered the applications dated December 17, 2012, complete but they contained an error other than the incorrect zoning that needed to be corrected. Based

   upon that error, FDOT issued a Notice of Denial and returned the paperwork to Petitioner to have the correction initialed. Once the applications were initialed, Respondent approved the applications and issued permit numbers 56284 and 56285.

7. The applications submitted by Petitioner did not have the correct parcel identification number. Based upon the parcel identification number on the approved applications, the sign would be constructed on a parcel not owned by Petitioner. At all times material to this case, Petitioner represented it owned the parcel upon which the sign would be constructed. The parcel identified on the approved applications is correctly zoned for an outdoor advertising sign, but Petitioner’s parcel may not be. Petitioner has never intended to construct a sign on the parcel identified by its applications.

   
   

8. Petitioner knew on December 17, 2012, that it had submitted applications with an incorrect parcel identification number. Petitioner knew on December 17, 2012, that the zoning for its parcel was residential not commercial.

9. When Petitioner received the documents subsequent to the Notice of Denial (identified in paragraph 6), it did not correct the parcel number or advise FDOT that the parcel number was incorrect. Although the parcel numbers now matched for each section of the applications, the number related to a parcel owned by West Melbourne Holdings, II, LLC. Petitioner has no interest in West Melbourne Holdings, II, LLC. As a result, Petitioner did not accurately represent the zoning for the parcel it owns and upon which it sought to construct its sign.

10. FDOT relies on the information submitted by applicants to determine whether a parcel is eligible for a sign permit. If an applicant submits false information, Respondent takes action to revoke a permit that was based on false information. In this case, Petitioner began to construct a sign on its property and another sign company (Petitioner’s competitor) notified FDOT that Petitioner was constructing a sign in an inappropriate location.

11. Upon receipt of the complaint, FDOT began a review of Petitioner’s applications and discovered the applicant did not own the parcel that was approved for the sign. Although Petitioner had submitted an accurate street address, the parcel

    
    

    for which the sign permits were issued was not owned by Petitioner. Additionally, FDOT discovered a zoning discrepancy that would not allow approval of permits for Petitioner’s parcel. Had Petitioner submitted the correct zoning information for its parcel, the applications may not have been approved.

12. Petitioner maintains that inaccuracies on its applications were inadvertent and unintentional. Petitioner argues it never knowingly submitted incorrect or misleading information. Having weighed the credible evidence submitted in this cause, such argument has been rejected. To the contrary, Petitioner knew the parcel number submitted on the applications dated December 17, 2012, was false. Petitioner knew the zoning for its parcel was residential. Petitioner did nothing to correct the errors after they were known and before the permits were issued. An applicant has an affirmative duty to submit truthful, accurate information.

    CONCLUSIONS OF LAW

    
    

13. DOAH has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2013).

14. Section 479.07, Florida Statutes (2013), provides, in

    
    

    part:

    
    

    1. Except as provided in ss. 479.105(1)(e) and 479.16, a person may not erect, operate, use, or maintain, or cause to be erected,

       
       

       operated, used, or maintained, any sign on the State Highway System outside an urban area, as defined in s. 334.03(31), or on any portion of the interstate or federal-aid primary highway system without first obtaining a permit for the sign from the department and paying the annual fee as provided in this section. As used in this section, the term “on any portion of the State Highway System, interstate, or federal- aid primary system” means a sign located within the controlled area which is visible from any portion of the main-traveled way of such system.

       
       

    2. A person may not apply for a permit unless he or she has first obtained the written permission of the owner or other person in lawful possession or control of the site designated as the location of the sign in the application for the permit.

    
    

    (3)(a) An application for a sign permit must be made on a form prescribed by the department, and a separate application must be submitted for each permit requested. A permit is required for each sign facing.

    
    

    (b) As part of the application, the applicant or his or her authorized representative must certify in a notarized signed statement that all information provided in the application is true and correct and that, pursuant to subsection (2), he or she has obtained the written permission of the owner or other person in lawful possession of the site designated as the location of the sign in the permit application. Every permit application must be accompanied by the appropriate permit fee; a signed statement by the owner or other person in lawful control of the site on which the sign is located or will be erected, authorizing the placement of the sign on that site; and, where local governmental regulation of signs exists, a statement from the appropriate local governmental official

    
    

    indicating that the sign complies with all local governmental requirements and that the agency or unit of local government will issue a permit to that applicant upon approval of the state permit application by the department.

    
    

15. Section 479.08, Florida Statutes (2013), provides, in

    
    

    part:

    
    

    The department may deny or revoke any permit requested or granted under this chapter in any case in which it determines that the application for the permit contains knowingly false or misleading information. The department may revoke any permit granted under this chapter in any case in which the permittee has violated any of the provisions of this chapter, unless such permittee, within 30 days after the receipt of notice by the department, complies with the provisions of this chapter. For the purpose of this section, the notice of violation issued by the department must describe in detail the alleged violation. Any person aggrieved by any action of the department in denying or revoking a permit under this chapter may, within 30 days after receipt of the notice, apply to the department for an administrative hearing pursuant to chapter 120. If a timely request for hearing has been filed and the department issues a final order revoking a permit, such revocation shall be effective 30 days after the date of rendition. Except for department action pursuant to s. 479.107(1), the filing of a timely and proper notice of appeal shall operate to stay the revocation until the department’s action is upheld.

    
    

16. Section 479.111, Florida Statutes (2013), provides, in pertinent part:

    Only the following signs shall be allowed within controlled portions of the interstate highway system and the federal-aid primary

    
    

    highway system as set forth in s. 479.11(1) and (2):

    
    

    1. Directional or other official signs and notices which conform to 23 C.F.R. ss. 750.151-750.155.

       
       

    2. Signs in commercial-zoned and industrial-zoned areas or commercial-unzoned and industrial-unzoned areas and within 660 feet of the nearest edge of the right-of-way, subject to the requirements set forth in the agreement between the state and the United States Department of Transportation.

       
       

17. In this case, Respondent has demonstrated Petitioner submitted applications with false information, did nothing to correct the errors, and misrepresented its zoning in order to obtain sign permits. By misleading FDOT, Petitioner was able to begin construction on a sign because permits were issued based on false information. Petitioner’s agent allegedly prepared two sets of applications on December 17, 2012. Only one set, a set never processed by FDOT, contained the correct information. The set that was approved contained incorrect information and Petitioner knew on December 17, 2012, before FDOT ever reviewed the applications for approval, that it was false. Respondent has proven by a preponderance of the evidence that Petitioner violated the statute by knowingly submitting false information to FDOT. See Fla. Dep’t of Transp. v. J. W. C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

    
    

18. Respondent does not have control over the local zoning of parcels. FDOT relies on the information from applicants to determine whether local zoning meets state criteria. Whether the zoning for Petitioner’s parcel would allow outdoor advertising signs as intended by Petitioner is unknown. It is unlikely because Petitioner’s parcel is zoned residential. Because Petitioner submitted the incorrect parcel number and obtained an erroneous zoning report for the permits it obtained, the local zoning official did not represent whether its land use plan would allow outdoor advertising for the parcel owned by Petitioner. Under state law, commercial zoning would be necessary. Whether the zoning for Petitioner’s parcel could be amended to allow for the instant sign is unknown and was not addressed by the parties. Presumably, if Petitioner’s parcel were appropriately zoned and if its applications represented truthful, accurate information, Petitioner may be able to obtain permits for the sign it seeks to construct. As it is, however, FDOT must revoke the permits that were based on false information.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order revoking the permits for the subject sign.

DONE AND ENTERED this 2nd day of October, 2013, in Tallahassee, Leon County, Florida.

S

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 2013.

COPIES FURNISHED:

Gary B. Frese, Esquire

Frese, Hansen, Anderson, Anderson, Heuston and Whitehead, P.A.

Suite 301

2200 Front Street

Melbourne, Florida 32901

Kimberly Clark Menchion, Esquire Department of Transportation Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399

Trish Parsons, Clerk of Agency Proceedings Florida Department of Transportation Haydon Burns Building

605 Suwannee Street, Mail Stop 58

Tallahassee, Florida 32399-0450

Ananth Prasad, Secretary

Florida Department of Transportation Haydon Burns Building

605 Suwannee Street, Mail Stop 57

Tallahassee, Florida 32399-0450

Gerald B. Curington, General Counsel Florida Department of Transportation Haydon Burns Building

605 Suwannee Street, Mail Stop 58

Tallahassee, Florida 32399-0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 13-001659

Orders for Case No: 13-001659